Stafford, VA asked in Probate for Virginia

Q: Trying to sell my father's home, his will now probated left home to 9 children. One died within 60 days of my father.

Title company is telling us we can't proceed with sale until brothers estate is probated in Florida. Brother was a Nevada resident, never lived in Florida. Is this true? Brothers share, one ninth would go to his estate, his heirs.

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1 Lawyer Answer
Thomas H. Roberts Esq
Thomas H. Roberts Esq
  • Richmond, VA
  • Licensed in Virginia

A: Not necessarily. The house belongs to 9 children. One of those children died (you don't say whether before or after your father's death). If the son died before your father, assuming that your father's will provided that any share to a predeceased child goes to his children ("per stirpes") then that son's children own 1/9 of the house. If on the other hand, the son died after the father, then his share goes according to that son's will or if without a will to the intestacy laws. This second scenario is probably what you are dealing with. So until his will is probated or it is determined who owns this son's interest, you are missing a needed signature on the deed. A messy way around this problem is to ask the court to partition the property. The deceased son's heirs will be necessary parties, but you should not have to wait for the deceased son's estate to be probated. Your question is listed under the Virginia law section, so I have no idea why the title company is stating that the brother's estate must be probated in Florida when he was a Nevada resident.

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